Is it possible to approach the BelCCI for an opinion recognising sanctions as force majeure circumstances?

When it comes to qualifying sanctions as force majeure circumstances, in each specific case it is necessary to assess their direct impact on the fulfillment of the contractual obligations by the subject.

Sanctions themselves cannot be considered force majeure if their action has not deprived the party to the contract of the possibility to comply with the contractual obligation. On its official website the BelCCI notes that the sanctions imposed by the European Union, the United States and other countries are considered as a force majeure event in the presence of signs of emergency and inevitability in relation to the obligations of business entities of the Republic of Belarus under civil law.

To understand what emergency and inevitability means, one can refer to the model force majeure clause recommended by the International Chamber of Commerce (ICC). Thus, the clause states that “force majeure” means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that the party affected by the impediment proves:

• that such impediment is beyond its reasonable control; and
• that it could not reasonably have been foreseen at the time of the conclusion of the contract; and
• that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

Based on these criteria, it is possible to assess the presence of signs of emergency and inevitability of circumstances that have arisen in relation to the contractual obligations of business entities.

Thus, the BelCCI is competent to testify to the existence of force majeure circumstances caused by the sanctions of foreign states and arising outside the Republic of Belarus, provided that the signs of force majeure described above are present.